MUSA v. SAMORE & ORS
(2022)LCN/17166(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, June 28, 2022
CA/YL/12/2020
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
YUSUF MUSA (Suing For Himself And On Behalf Of Jauro Kapo Family) APPELANT(S)
And
1. IDI SAMORE 2. DANLADI PACHI 3. DANLADI SAMORE 4. MOHAMMED SABON GARI RESPONDENT(S)
RATIO
THE CONDITIONS THAT MUST BE FULFILED FOR A PLEA OF PER REM JUDICATAM TO APPLY
For a plea of estoppel per rem judicatam to apply, the following conditions must be met:
1. The parties must be the same (which means that parties involved in both proceedings must be the same or by their privies).
2. The same question must be for decision in both proceedings (which means that the question for decision in the earlier proceedings must be the same as the current proceedings).
3. The decision relied upon to support the plea of issue estoppel must be final.
4. The Court that gave the previous decision relied upon must be a Court of competent jurisdiction.
See YOYE VS. OLUBODE & ORS (1974) (SC) PP. 13 – 14, PARAS. F – A, ALASHE & ORS VS. OLORI – ILU & ORS (1964) LPELR – 25161 (SC) P. 8, PARAS. D – E, YANATY PETROCHEMICAL LTD VS. EFCC (2017) LPELR – 43473 (SC) PP. 55 – 56, PARAS . D – A and WILBROS WEST AFRICA, INC. & ORS. VS. MCDONNEL CONTRACT MINING LTD (2021) LPELR – 54544 (CA) PP. 60 – 61, PARAS. F – C. As rightly submitted by the learned counsel to the Appellant, the burden lies on the party who sets up the defence of estoppel per rem judicata to establish the listed conditions above. PER UWA, J.C.A.
WHETHER OR NOT A PLEA OF RES JUDICATA CAN OPERATE OVER A SMALL PORTION OF LAND LITIGATED UPON
The law is that a plea of res judicata will operate over a small portion of land litigated upon, such portion may be a smaller area or part of a larger portion of land and not over the entire larger portion. On the other hand as in the present case, where a large portion of land has been litigated upon before a competent Court, a re-litigation over a smaller portion of the earlier litigated larger portion is caught up by the plea of res judicata. See ARO VS. FABOLUDE (1983) (supra). PER UWA, J.C.A.
WHETHER OR NOT WHERE A COMPETENT COURT HAS DETERMINED AN ISSUE, AND ENTERED JUDGMENT THEREIN, A PARTY CAN RE-LITIGATE THAT ISSUE BY FORMULATING A FRESH ACTION ON WHAT HAS ALREADY BEEN DECIDED
The judgment of a competent Court or a ruling that finally determines an issue subsists and is binding until set aside on appeal. The reason is to put an end to litigation or proliferation of litigation. In ALAO VS. AKANO (1988) LPELR – 410 (SC) P. 13, PARAS. A – D, his Lordship, Craig, JSC gave the rationale for the doctrine of res judicata thus:
“The principal behind this rule, is that where a competent Court has determined an issue, and entered judgment therein, neither party may re-litigate that issue by formulating a fresh action on what has already been decided. MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587. But it is important to note that when a plea of a res judicata is made, it is necessary to show not only that the cause of action is the same, but also that the plaintiff has had an opportunity to recover in the first action that which he seeks to recover in the second. Re Hilton ex p. March (1892) 67 L.T. 594.”
See also BONNY & ORS VS. YOUGHA & ORS (1969) LPELR – 25524 (SC) PP. 7 – 8, PARAS. G – B, COLE VS. JIBUNOH & ORS (2016) LPELR – 40662 (SC) P. 54, PARAS. A – E and MAKINDE VS. MENE & ORS (2018) LPELR – 50671 (CA) PP. 5 – 6, PARAS. F – A. Public policy demands that once a Court of competent jurisdiction has settled by a final decision, the matters in contention between parties, they should not bother the Courts again with re-litigation. There should be an end to litigation, therefore the Courts should not encourage prolongation of disputes or proliferation of litigation. Once the merits of the questions in issue are determined between the parties and a final judgment or ruling is delivered, such parties should not be allowed to raise or canvass in a fresh suit, the same issues on the same subject matter. See also my earlier decision in OLOWOYO VS. OJO & ORS (2011) LPELR – 4504 (CA) P. 40, PARAS. B – F. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Adamawa State sitting in its appellate jurisdiction presided over by A. A. Waziri, J (as he then was) delivered the judgment that gave rise to this appeal on 25th day of July, 2019. It was made out by the Appellant that he applied and obtained the leave of the lower Court to appeal against the decision of the lower Court, pages 240 – 241.
The background facts are that the Appellant as Plaintiff at the Upper Area Court filed Suit No. UAC3Y/CV/FI/130/2016 against all the Respondents herein as defendants in which the following reliefs were sought:
(a) “A declaration of title to a piece of land measuring about 3 hectares situated at Kapo village, Ribadu District, fufore Local Government Area.
(b) A declaration that the acts of the defendants/Respondents in ploughing and planting crops on the land in dispute amount to acts of trespass.
(c) An order of perpetual injunction restraining the defendants, their agents, privies or representatives from further trespassing on the land in dispute.
(d) General damages of N1,000,000.00 (One Million Naira) only for trespass.
(e) Cost of the suit” (See pages 11 – 14 of the record).
In reaction to the above claim, the Respondents filed a preliminary objection challenging the suit on the ground of estoppel per rem judicata. The Appellant filed a Counter-Affidavit opposing the Application. The Respondents also filed a reply on points of law. In the ruling of the trial Court of 24th April, 2018 the trial Court dismissed the preliminary objection, the matter was fixed for hearing thereafter. The Respondents appealed to the High Court. In the lower Court’s judgment of 25th July, 2019, the High Court dismissed the Appellant’s case at the trial Upper Area Court No. 3 Yola on the ground of estoppel per rem judicata. The Appellant dissatisfied with the judgment of the lower Court appealed to this Court in which the following three issues were formulated for the determination of the appeal thus:
(i) “Whether the Court below was right in dismissing the Appellant’s Suit No. UAC3Y/CV/F1/130/2016 between Appellant and Respondents at the Upper Area Court No. 3 Yola on the ground of estoppel per Rem judicata when the parties are not the same, the subject matters of the suits are different and when evidence shows that the plaintiff is not a privy to any of the parties to the previous suits? (Distilled from grounds 3 and 4).
(ii) Whether the Learned High Court Judge was right when he relied upon Exhibit D in support of the preliminary objection in holding that the Plaintiff’s/Appellant’s case at the trial Court was Rem judicatam when the judgment in Exhibit D was since set aside by this Court in Appeal No. CA/YL/151/2017 and when no argument of estoppel was canvassed upon Exhibit D at the Court below? (Distilled from ground 1)
(iii) Whether the Court below was right in upholding the preliminary objection of the Respondents on the ground of estoppel per Rem judicatam when all the previous judgments relied upon and attached as exhibits A, B and C did not finally determine the rights of the parties to the suits?” (Distilled from ground 2)
The Respondents on their part also formulated three issues for the determination of the Appeal thus:
i. “Whether the Court below was right in dismissing the Appellant’s Suit No. UACY/CV/F1/130/2016 between the Appellant and Respondents at the trial Upper Area Court No. 3 Yola on ground of estoppel per rem judicata given that the parties and subject matters of the suits are the same and when evidence shows that the Plaintiff at Upper Area Court No. 3 Yola is privy in blood to Umaru Jauro Kapo in the previous suits.
ii. Whether reference to and comments on Exhibit ‘D’ attached to the Preliminary Objection of the Respondents at the trial Upper Area Court No. 3 Yola in the judgment of the lower Court could be construed to mean that the learned Judge of the lower Court relied on the said Exhibit ‘D’ in holding that the suit at the trial Upper Area Court No. 3, Yola was Res per Rem Judicata.
iii. Whether Exhibit ‘C’ attached to the Preliminary Objection at the trial Upper Area Court No. 3 Yola did not finally determine the right of the parties to litigate on the subject matter (land in issue) to justify the upholding of the Preliminary Objection by the lower Court.”
In arguing the appeal, the learned counsel to the Appellant E. M. Zangina Esq., relied on his brief of argument filed on 28/10/21 as his oral argument in this appeal in urging us to allow the appeal, set aside the judgment of the High Court and remit the case back to the Upper Area Court 3, Yola for the hearing of the matter on its merit. In arguing his issue one, it was submitted that for a plea of estoppel per rem judicata to succeed, the defendant who raises it must establish that the parties or their privies in the previous and current proceedings are the same, the subject matter of the dispute must be the same and the Court that decided the previous matter must have the competence to have entertained the matter. See YANATY PETROCHEMICAL LIMITED VS. ECONOMIC and FINANCIAL CRIMES COMMISSION (2018) ALL FWLR (PT. 965) PAGE 118 at PAGES 152 – 153, PARAS. D-A.
For the plea of estoppel per rem judicata to succeed, it must be proved that the parties or their privies in the previous and present suits are the same. It was submitted that the parties in the previous suit and the parties in the present case are not the same, therefore the plea of the estoppel per rem judicata cannot avail the Respondents. It was submitted that the Appellant denied being privy to Umaru Kapo who was the Plaintiff in Exhibit “A” and Respondent in Exhibit “B”, pages 92 – 95 of the printed records of Appeal. It was argued that the Appellant could not have been estopped from pursuing the action at the Upper Area Court No. 3, Yola.
On whether the issue or claims between the parties in the previous and present suit are the same, it was submitted that in the previous suit at the Upper Area Court the reliefs sought were for a declaration of title to a piece of land measuring about three (3) hectares at Kapo village junction and general damages for trespass whereas the claim of the Appellant in Exhibit “A” attached to the Preliminary Objection is for a refund of N7,000.00 (Seven Thousand Naira) being the cost of clearing the farmland and farm royalty, pages 22 and 39 of the records and the order of the Court in Exhibit “A” which was refund for the clearance of the farmland, page 39 paragraph 3 of the records, where the Court made an order that the then defendant shall pay the then Plaintiff the sum of N7,000.00 the cost of clearing the land. It was submitted that the claims of the parties in the two suits are different thus making the decision of the lower Court erroneous.
On whether the decision relied upon to support the plea is valid, subsisting and has finally determined the rights of the parties therein, it was submitted that the decision the lower Court relied upon to sustain the plea of estoppel perrem judicata is not subsisting and did not determine the rights of the parties for it to operate as estoppel. It was argued that Exhibit “A” in support of the Preliminary Objection which gave judgment against the 1st Respondent was set aside and reversed by the Upper Area Court 2, Yola in Exhibit “B” in support of the Preliminary Objection was also set aside by the decision of the High Court in Appeal No. ADSY/51M/2007, Exhibit “C” in support of the Preliminary Objection, pages 45 – 71 of the printed records of appeal, particularly paragraph 2 at page 71 where the appeal against Exhibit “B” succeeded and a retrial was ordered before the Upper Area Court No. 1 Yola. Further, that the judgment of the High Court in Suit No. ADSY/24/2011 was quashed and set aside in Appeal No. CA/YL/151/2017 by this Court and a retrial was ordered. It was argued that none of the exhibited judgments in support of the Preliminary Objection determined the right of the parties, particularly the Respondents herein for such a judgment to operate as estoppel per rem judicata against the Appellant and in favour of the Respondents.
It was concluded on this issue that the pre-conditions for a successful plea of estoppel per rem judicata were not established by the Respondent therefore that the lower Court was wrong to have upheld the preliminary objection and dismissed the plaintiff’s action at the Upper Area Court No. 3 Yola in Suit No. UAC3Y/F1/130/2016. We were urged to set aside the decision of the lower Court.
The learned counsel to the Appellant argued his issues two and three together. It was submitted that the decision of the lower Court was wrongly arrived at as Exhibit “D” which was set aside by this Court on 17/4/2018 in Appeal No. CA/YL/151/17 was utilized by the lower Court. In the said judgment this Court set aside the decision of the High Court in Suit No. ADSY/24/2011 and made an order of re-trial. Therefore, that Exhibit “D” was not in existence when the lower Court relied on same in its judgment. It was submitted that for a plea of res judicata or estoppel of record to succeed, the issues must have previously determined and resolved between the same parties to the proceedings. See POPOOLA BAMGBEGBIN & ORS VS. JIMOH ATANDA ORIARE (2009) ALL FWLR (PT. 848 PAGE 1460 at 1486 – 1487 PARAS. G – A, AHMADU MAKUN & ORS VS. FEDERAL UNIVERSITY OF TECHNOLOGY MINNA & ORS (2011) ALL FWLR (PT. 594) PAGE 1 at PAGES 21 – 23, PARAS. G-F. It was concluded on this issue that Exhibit “B” which gave judgment to the 1st Respondent was quashed by Exhibits “C” and “D” which were also quashed by this Court in Appeal No. CA/YL/151/2017, therefore, that the lower Court relying on Exhibits “B” and “D” in arriving at its decision was wrong.
In response, the learned counsel to the Respondents Mfoniso G. Akpanamasi Esq., adopted relied on her brief of argument filed on 14/12/21 as her oral argument in urging this Court to dismiss the appeal with costs and affirm the decision of the High Court. In arguing her issue one (1), it was submitted that Exhibits ‘A’, ‘B’ and ‘C’ showed the consistency of the parties. It was argued that the Appellant herein is privy in blood to the late Umaru Jauro Kapo who was a party in all the proceedings and a party at the Upper Area Court No. 3, Yola and that the 1st Respondent herein is the family head of Kapo Family (to which all the other Respondents belong) was a party to the proceedings in Exhibits ‘A’, ‘B’ and ‘C’ and a party in the suit at the Upper Area Court No. 3 Yola, which satisfies the condition for a successful plea of estoppel per rem judicata. See OGBOLOSINGHA VS.B.S.I.E.C, IYAYI VS.EYIGEBE (1987) 3 NWLR (PT. 61) 523 at 525. It was submitted that the Appellant herein being privy in blood to Umaru Jauro Kapo was a consistent party in Exhibits ‘A’, ‘B’ and ‘C’ and that the Appellant herein cannot exclude himself as not being bound as a party by the decision of the High Court in Exhibit ‘C’, reference was made to paragraphs 5 and 6 of his Amended particulars of claim at the lower Court dated 23/5/18, page 12 of the records which was admitted by the Appellant and need no further proof. See REYNOLDS CONSTRUCTION COMPANY NIG. LTD. VS. ROCK ONOH PROPERTIES CO. LTD. (2005) 10 NWLR (PT. 934) 615 at 625 and ETHEL ONYENAECHI DAVID ORRI VS. DORYI TEXTILES MILK (NIG.) LTD (2009) 18 NWLR (PT. 1173) 467 at 500.
On the second condition for a successful plea of estoppel per rem judicata, it was submitted that Exhibit ‘A’ was made the subject matter of the judgments in Exhibits “B” and “C” which were in respect of the claim of ownership in which the High Court in Exhibit “C” ordered a retrial at the Upper Area Court No. 1 to establish ownership of the said land. It was argued that the Appellant cannot turnaround to claim ownership of a portion of the same disputed land the Appellant’s uncle maintained through Exhibits “A”, “B” and “C” as being owned by Bamanga Tukur which the Appellant’s held in trust. It was contended that the claim before the trial Area Court No. 3 by the Appellant which borders on ownership which is the same as the claim in Exhibits ‘A’, ‘B’ and ‘C’ satisfies the condition for a successful plea of estoppel per rem judicata.
It was argued that the subject matter in a previous case before the trial Upper Area Court No. 3 involved part of a larger farmland depicted by a pictorial diagram in Exhibit “A” which was the subject matter contained in the judgment contained in Exhibit “C”. It was argued that where a large portion of land has been litigated upon before a competent Court, a re-litigation over a smaller portion of the earlier litigated larger land is barred by the plea of res judicata as in the present case. Further, where the subject matter was properly identified by both parties at the visit to locus in quo to be the same land described in the pictorial diagram found on page 33 of the records of appeal, the proceedings at pages 128 – 129 was referred to.
It was submitted that there exists a valid and final judgment contained in Exhibit “C” wherein the subject matter before the trial Upper Area Court No. 3 but, a part of a larger farmland which is the subject matter of the said judgment, was argued to be subsisting and not set aside on appeal by a competent Court. See AJAO VS. ALAO (1986) 5 NWLR, PAGE 802 at 805 and OKUKUJE VS. AKWIDO (2001) NWLR (PT. 700) 261 at 264. Further, that where there is a judgment/ruling of a competent Court which finally determines an issue such issue subsists and is binding until set aside on appeal. On the other hand, that the Court discourages proliferation of litigation. It was argued that it is only the substituted Bamanga Tukur and the 1st Respondent who could re-litigate at the Upper Area Court No. 1. It was argued that with the subsisting decision of a competent Court, any member of Jauro Kapo Family cannot lay claim of ownership to any portion of the land which is the subject matter of the present appeal.
It was contended that the admitted facts in the affidavit evidence shows that the plaintiff at the Upper Area Court No. 3 is privy in blood to Umaru Jauro Kapo in the previous proceedings contained in Exhibits “A”, “B” and “C”. It was concluded that the lower Court was right to have dismissed the appellant’s Suit No. UAC3Y/CV/F1/130/2016 between the Appellant and the Respondents at the trial Upper Area Court No. 3 Yola on the ground of estoppel per rem judicata, the claim, parties and subject matter of the suit are the same as in Exhibits “A”, “B” and “C”.
In arguing her second issue, the learned counsel submitted that in the lower Court’s judgment, pages 229 – 239 of the records, Exhibits “A”, “B” and “C” were identified as well as Exhibit “D” which relates to an entirely different adjoining land to the one in issue and not the basis upon which the said judgment relied on. We were urged to hold that by reference to Exhibit “D” (attached to the preliminary objection of the Respondents at the trial Upper Area Court No. 3 Yola) in the judgment at the lower Court, it cannot be said that the lower Court relied on Exhibit “D” in holding that the suit at the trial Upper Area Court No. 3 was res per rem judicata.
On the third issue, it was submitted that Exhibit “C” is the record of appeal with the Ruling of the Court in the Appeal between Alh. Bamanga Tukur (who was substituted on the orders of Court for Umaru Jauro Kapo upon the latter’s demise and Idi Samore against the judgment of the Upper Area Court No. 2 in 2007, at the High Court of Adamawa State sitting on appeal, pages 45 – 71 of the printed records of appeal. It was submitted that the ruling in the said appeal is in respect of the land in issue between the parties herein at the trial Upper Area Court No. 3, Yola. The ruling allowed the appeal on condition that the matter be retried strictly between Bamanga Tukur and Idi Samore. It was made out that by the Ruling, Exhibit “C” attached to the Affidavit in support of the Preliminary Objection of the Respondents at the Upper Area Court No. 3, Yola, the rights of the parties to litigate on the subject matter was finally determined to the effect that the parties legible to litigate on the subject matter (Exhibit “A”) are Bamanga Tukur and Idi Samore, not the Appellant or anyone who is privy by blood to Umaru Jauro Kapo. In defining parties to include privies by blood, estate, executors, trustees etc reliance was placed on EYILEAGUN VS. OLUSONDE (2013) ALL FWLR (PT. 665) 324 at 328. It was concluded on this issue that Exhibit “C” attached to the Preliminary Objection at the trial Area Court No. 3 Yola, finally determined the rights of the parties to litigate on the subject matter.
I will utilize the issues as formulated by the Appellant in determining the appeal. The issues are similar to those of the Respondents. The appeal challenged the lower Court’s judgment in its appellate jurisdiction in which the Appellant’s suit before the Upper Area Court No. 3, Yola was dismissed on the ground of estoppel per rem judicata.
For a plea of estoppel per rem judicatam to apply, the following conditions must be met:
1. The parties must be the same (which means that parties involved in both proceedings must be the same or by their privies).
2. The same question must be for decision in both proceedings (which means that the question for decision in the earlier proceedings must be the same as the current proceedings).
3. The decision relied upon to support the plea of issue estoppel must be final.
4. The Court that gave the previous decision relied upon must be a Court of competent jurisdiction.
See YOYE VS. OLUBODE & ORS (1974) (SC) PP. 13 – 14, PARAS. F – A, ALASHE & ORS VS. OLORI – ILU & ORS (1964) LPELR – 25161 (SC) P. 8, PARAS. D – E, YANATY PETROCHEMICAL LTD VS. EFCC (2017) LPELR – 43473 (SC) PP. 55 – 56, PARAS . D – A and WILBROS WEST AFRICA, INC. & ORS. VS. MCDONNEL CONTRACT MINING LTD (2021) LPELR – 54544 (CA) PP. 60 – 61, PARAS. F – C. As rightly submitted by the learned counsel to the Appellant, the burden lies on the party who sets up the defence of estoppel per rem judicata to establish the listed conditions above.
Exhibits ‘A’, ‘B’ and ‘C’ are the proceedings, judgment and ruling showing the parties in the earlier proceedings. The Appellant who sued for himself and on behalf of Jauro Kapo Family has not denied or made out that he is not privy by blood to the late Umaru Jauro Kapo who was a party in the previous proceedings. The Appellant was a party in the suit at the Upper Area Court No. 3 Yola. Further, the 1st Respondent herein from the records of Court is the head of the Kapo family to which all the Respondents belong and was also a party to the proceedings in Exhibits ‘A’, ‘B’ and ‘C’ and the suit at the trial Upper Area Court No. 3 Yola. The Appellant herein has the same interest on the disputed land as late Umaru Kapo to whom he is privy to by blood. The Appellant herein took out the action on behalf of Jauro Kapo family against the Respondents herein at the Upper Area Court No. 3, Yola for the declaration of title over a piece of land measuring about three (3) hectares which is part of the larger piece of land shown in the diagram at page 33 of the printed records of appeal which was the subject of litigation in Exhibit ‘A’, which was subject to Appeal in Exhibit “B” and also subject of appeal in Exhibit “C”. I hold that the parties or their privies are the same in the previous and present proceedings.
On the second condition, that the claim or issues in dispute must be the same, the claim before the trial Upper Area Court No. 3 Yola between the parties herein which resulted in the appeal at the lower Court involves ownership of farmland shown in the diagram in Exhibit ‘A’ which was made the subject matter of the judgments in Exhibits ‘B’ and ‘C’ as highlighted by the learned counsel to the Respondents. It was in respect of the said claim of ownership that the High Court, Yola in Exhibit ‘C’ ordered a retrial at the Upper Area Court No. 1 to determine ownership of the said land between Alhaji Bamanga Tukur (whom Umaru Jauro Kapo in Exhibit ‘A’ claimed to hold in trust for) and Idi Samore as the defendant who raised the defence that the ownership of the land in dispute belonged to his family (the Kapo family) which he defended and represented in the previous cases in Exhibits ‘A’, ‘B’ and ‘C’. The learned counsel had argued that the Appellant cannot now turn around to claim ownership of a portion of the same disputed land that his late uncle (Umaru Jauro Kapo) to whom he is privy by blood maintained through Exhibits ‘A’, ‘B’ and ‘C’ while alive, as being owned by Bamanga Tukur while the Appellant’s late uncle and family held the land in trust for the said Bamanga Tukur. Therefore, the claim before the Upper Area Court No. 3 by the Appellant which borders on ownership of the land is the same claim as in Exhibits ‘A’, ‘B’ and ‘C’. See UDO & ORS VS. OBOT & ORS (1989) LPELR – 3297 (SC) P. 26, PARAS. C – D, ARO VS. FABOLUDE (1983) LPELR – 558 (SC) PP. 9 – 10, PARAS. D – A and GBEMISOLA VS. BOLARINWA & ANOR (2014) LPELR – 22463 (SC) PP. 21 – 23, PARAS. E – A.
In respect of the third condition, that the res/subject matter in the previous case/cases is/are the same. In the present case, the subject matter at the Upper Area Court No. 3 Yola, was about three (3) Hectares of farmland, part of a larger farmland depicted in a pictorial diagram contained in Exhibit ‘A’ which was the subject matter of litigation in the judgment contained in Exhibit ‘C’.
The law is that a plea of res judicata will operate over a small portion of land litigated upon, such portion may be a smaller area or part of a larger portion of land and not over the entire larger portion. On the other hand as in the present case, where a large portion of land has been litigated upon before a competent Court, a re-litigation over a smaller portion of the earlier litigated larger portion is caught up by the plea of res judicata. See ARO VS. FABOLUDE (1983) (supra). The subject matter was identified by both parties at the visit to locus in quo to be the land in the pictorial diagram at page 33 of the printed records. The visit to locus in quo is captured at pages 128 – 129 of the printed records of appeal. I hold that the previous proceedings and the present one are in respect of the same subject matter.
For estoppel per rem judicata to operate, there must be in existence a valid and final judgment. The subject matter before the trial Upper Area Court No. 3 Yola, concerns part of a larger farmland which is the subject matter of Exhibit “C” which is subsisting and has not been set aside or upturned on appeal by a competent Court. In Exhibit ‘C’, the Court ordered Bamanga Tukur to substitute the late uncle of the Appellant, Umaru Jauro Kapo who claimed to have held the land in trust for the said Bamanga Tukur for a proper determination of the ownership of the entire land including the three (3) hectares in issue as per Exhibit ‘C’.
The judgment of a competent Court or a ruling that finally determines an issue subsists and is binding until set aside on appeal. The reason is to put an end to litigation or proliferation of litigation. In ALAO VS. AKANO (1988) LPELR – 410 (SC) P. 13, PARAS. A – D, his Lordship, Craig, JSC gave the rationale for the doctrine of res judicata thus:
“The principal behind this rule, is that where a competent Court has determined an issue, and entered judgment therein, neither party may re-litigate that issue by formulating a fresh action on what has already been decided. MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587. But it is important to note that when a plea of a res judicata is made, it is necessary to show not only that the cause of action is the same, but also that the plaintiff has had an opportunity to recover in the first action that which he seeks to recover in the second. Re Hilton ex p. March (1892) 67 L.T. 594.”
See also BONNY & ORS VS. YOUGHA & ORS (1969) LPELR – 25524 (SC) PP. 7 – 8, PARAS. G – B, COLE VS. JIBUNOH & ORS (2016) LPELR – 40662 (SC) P. 54, PARAS. A – E and MAKINDE VS. MENE & ORS (2018) LPELR – 50671 (CA) PP. 5 – 6, PARAS. F – A. Public policy demands that once a Court of competent jurisdiction has settled by a final decision, the matters in contention between parties, they should not bother the Courts again with re-litigation. There should be an end to litigation, therefore the Courts should not encourage prolongation of disputes or proliferation of litigation. Once the merits of the questions in issue are determined between the parties and a final judgment or ruling is delivered, such parties should not be allowed to raise or canvass in a fresh suit, the same issues on the same subject matter. See also my earlier decision in OLOWOYO VS. OJO & ORS (2011) LPELR – 4504 (CA) P. 40, PARAS. B – F.
I am at one with the submission of the learned counsel to the respondents that no member of Jauro Kapo family can rightly lay claim of ownership to any portion of the land which is the subject of this appeal except the substituted Bamanga Tukur and the 1st Respondent who should re-litigate at the Upper Area Court No. 1 as decided by a competent Court. The condition that a subsisting judgment exists, which satisfies the operation of the doctrine of res judicata.
As rightly argued by the learned counsel to the Respondents, the Adamawa State High Court whose ruling is contained in Exhibit ‘C’ is a Court of competent jurisdiction. I hold that the lower Court was right in dismissing the Appellant’s Suit No. UAC3Y/CV/F1/130/2016 between the Appellant and the Respondents at the trial Upper Area Court No. 3 Yola on the basis of estoppel per rem judicata in view of the fact that the parties or privies, the claim/issues and the res/subject matter are the same as in the previous proceedings which is still subsisting and from a Court of competent jurisdiction, that is, the claim, parties and subject matter in Exhibits ‘A’, ‘B’ and ‘C’ are the same as in the suit before the trial Upper Area Court No. 3. I resolve issue one against the Appellant.
The learned counsel to the Appellant had argued that the lower Court was wrong to have utilized Exhibit ‘D’ in holding that the suit at the trial Upper Area Court No. 3, Yola was res per rem judicata. To the contrary, the lower Court in its judgment at pages 237 – 238 identified Exhibit ‘D’ as the ruling/judgment at the High Court of 17/4/12. The decisions constantly referred to and relied upon by the lower Court to hold that the matter that led to the present appeal is caught up by the doctrine of estoppel per rem judicata are Exhibits ‘A’, ‘B’ and ‘C’ not Exhibit ‘D’. Issue two is resolved against the Appellant.
The third issue has been resolved under issue one, to the effect that Exhibit ‘C’, the record containing the Ruling of the High Court in the Appeal between Bamanga Tukur who substituted Umaru Jauro Kapo and Idi Samore against the judgment of the Upper Area Court No. 2, in 2007, attached to the Preliminary Objection at the trial Area Court No. 3 Yola, determined the right of the parties to the effect that the right people to litigate on the subject matter, the entire land covered by the pictorial diagram in Exhibit ‘A’ of which the three (3) hectares claimed by the Appellant is part of, should be Bamanga Tukur and Idi Samore and not the Appellant or anyone who is privy to the late Umaru Jauro Kapo. In Exhibit ‘C’ the High Court, Yola ordered a retrial specifically between the substituted Bamanga Tukur and the 1st Respondent; the said Bamanga Tukur has not taken any action yet. I resolve issue three (3) against the Appellant. I hold that the lower Court was right to have upheld the Preliminary Objection and the holding that the action before the trial Upper Area Court is caught up by the doctrine of estoppel by res judicata.
In sum, I find the appeal to be lacking in merit, I dismiss it in its entirety. I affirm the decision of the lower Court.
I award costs of N100,000.00 (One Hundred Thousand Naira) against the Appellant.
FATIMA OMORO AKINBAMI, J.C.A.: I have had a review of the judgment of my learned brother, Chidi Nwaoma Uwa, JCA, and I am in agreement that this appeal lacks merit. The trial Court has painstakingly evaluated the evidence before it, before coming to its conclusion.
It is a settled principle of law that, where a trial Court has carried out its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC, Sule Anyegwu v. Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I. T. Muhammad JSC.
I also dismiss this appeal and affirm the decision (judgment) of the trial Court.
I abide by the order on costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity to read before now in draft the copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. The issues contained in the lead judgment have been exhaustively dealt with by my Lord. I agree that the appeal lacks merit and should be dismissed. It is hereby dismissed by me with nothing further to add.
Appearances:
E.M. Zangina, Esq. For Appellant(s)
Mfoniso G. Akpanamasi, Esq. For Respondent(s)
